Further, plaintiff claimed that, due to the resulting neck surgery attendant
to that injury, she was forced to discontinue taking her arthritis medication, thus
aggravating her arthritis and contributing to complications with her sight. The heart of
the dispute on appeal is whether plaintiff's most serious injuries, which include the
fracture in her neck, were the result of the accident.

At trial, plaintiff presented evidence that the impact of the collision caused
her fractured neck. During plaintiff's case-in-chief, defense counsel, through cross-examination of Dr. Sultany, plaintiff's treating physician, adduced testimony that, before
the accident, plaintiff had developed osteoporosis, rendering her bones more brittle and,
consequently, "more subject to being fractured":

"Q. [Dr. Peters] indicates in his operative report of 11/20/96 that
because if the chronic use of steroids which were used to
manage her chronic condition that the chronic use of steroids
had caused her to develop osteoporosis?

"A. Correct.

"Q. Do you agree with that?

"A. Yes.

"* * * * *

"Q. And is [osteoporosis] a condition that affects the bones of the
body in a breakdown of the bones?

"A. It's the bones, yes. It decreases bone mineral density.

"Q. It decreases the strength of the bone so it's more subject to
being fractured and injured?

"A. Correct.

"Q. And she was -- and that was one of the side affects of the
necessary use of steroids?

"A. Correct."

Defendant's theory of the case was that plaintiff's preexisting arthritic
condition had caused the dens to deteriorate to the point that it separated/fractured prior to
the accident. Thus, defendant contended, the fracture could not have been caused by the
impact of the subsequent collision. In cross-examining defendant's expert witness,
plaintiff's counsel adduced the following testimony:

"Q. * * * isn't it possible, doctor, that what we have here, even
assuming the observation of the sclerotic changes isn't accurate, it
might be the beginnings of some unreported, not clinically significant,
level of arthritic activity in that area of the joint?

"A. Well, yes. That's what I believe has been going on.

"Q. And the dens itself, is it not possible, is still attached but
perhaps weakened until the accident? Is that not possible?

"A. Of course it's possible. Anything's possible."

Thus, at the time the case was submitted, there was evidence from which
the jury could find that (1) because of a preexisting condition, plaintiff was peculiarly
susceptible to injury; and (2) the impact of the collision caused the neck fracture.

The jury returned a verdict finding the parties to be equally at fault and
awarding plaintiff damages of $53,700. A review of the record demonstrates that, given
the amount of the verdict, the jury necessarily did not award damages for plaintiff's
fractured neck but, instead, awarded damages for plaintiff's other injuries.

On appeal, plaintiff assigns error to the trial court's refusal to give requested
UCJI 70.08, the so-called "eggshell skull plaintiff" instruction, and UCJI 23.02, the
"multiple causation" instruction. As described below, we conclude that the court erred in
failing to give the "eggshell skull plaintiff" instruction and that that error necessitates a
new trial. Given that conclusion, and because new or different evidence may be
presented as to causation at the new trial that would bear on the propriety of giving UCJI
23.02, we do not reach and resolve plaintiff's second assignment of error challenging the
failure to give that instruction.

We begin with well-established principles. A party is entitled to jury
instructions consistent with her theory of the case, provided that the instructions (1)
correctly state the law; (2) are based on the current pleadings; and (3) are supported by
evidence. Hernandez,327 Or at 106. Failure to give a requested jury instruction is
reversible error "only if the jury instructions given by the trial court, considered as a
whole, caused prejudice to the party requesting the instruction." Id. A party is
prejudiced, in this context, if the failure to give the requested instruction "probably
created an erroneous impression of the law in the minds of the members of the jury, and if
that erroneous impression may have affected the outcome of the case." Id. at 106-07.

In this case, plaintiff requested that the court give UCJI 70.08.

"If you find that the [plaintiff/defendant] had a bodily condition
that predisposed [him/her] to be more subject to injury than a person
in normal health, nevertheless the [plaintiff/defendant] would be liable
for any and all injuries and damage that may have been suffered by the
[plaintiff/defendant] as the result of the negligence of the
[plaintiff/defendant], even though those injuries, due to the prior
condition, may have been greater than those that would have been
suffered by another person under the same circumstances."

Defendant argues on appeal--and the trial court apparently agreed--that the evidence in
this case did not support that instruction. See Hernandez, 327 Or at 106. We disagree.

From the evidence before the jury, it could have determined that (1)
plaintiff's neck was fractured in the collision, but (2) plaintiff "had a bodily condition that
predisposed her to be more subject to injury than a person in normal health." UCJI 70.08.
Given that evidence, there was, at least, the very real potential that, notwithstanding
causation-in-fact, the jury would fail to award plaintiff damages for the neck fracture
because of her peculiar susceptibility to injury. That is, there was the potential that jurors
might decide that, because the same impact would not have fractured the neck of a
"normal" person, plaintiff should not recover damages for that injury.

That is precisely the circumstance that UCJI 70.08 is designed to address
and remedy. That instruction, by its terms, tells the jury that it cannot engage in such "it
would not have happened to a normal person" or "her neck was going to break anyway"
denial or discounting of damages. See Winn v. Fry, 77 Or App 690, 693, 714 P2d 269,
rev den 301 Or 241 (1986) ("The basic premise regarding damages is that a defendant
'takes a plaintiff as he finds him,' * * *."). Given the evidence, plaintiff was entitled to
have that instruction given to the jury. Consequently, the court erred in failing to give
requested UCJI 70.08.

3. UCJI 23.01, as modified by the trial court and presented to the jury,
provided:

"You are instructed that in order to be a cause of injury an act of omission
must be a substantial factor in producing the injury. A substantial factor is
an important or material factor, and not one that is significant."